Citation Nr: 0920720
Decision Date: 06/03/09 Archive Date: 06/09/09
DOCKET NO. 08-02 702 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an earlier effective date for grant of
service connection for tinnitus.
2. Entitlement to a disability rating in excess of 30
percent for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Kenneth Lavan, Attorney at Law
ATTORNEY FOR THE BOARD
E. D. Anderson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from October 1978 to
October 1982.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from January 2006 and June 2007 rating decisions of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.
A hearing was held before a member of the Board in April
2009. The Veteran was unable to attend due to illness, but
his representative made a statement on his behalf. A
transcript of that hearing is of record.
From a review of the record, as well as from statements by
the Veteran's representative, it appears that in addition to
appealing the issues of entitlement to an earlier effective
date for a grant of service connection for tinnitus and
entitlement to a disability rating in excess of 30 percent
for bilateral hearing loss, the Veteran also intended to
appeal the issues of entitlement to service connection for a
bilateral eyes disability, hepatitis C, and a back
disability, as well as entitlement to an earlier effective
date for hearing loss and an increased rating for tinnitus.
Under 38 U.S.C.A. § 7105(a) (West 2002), an appeal to the
Board must be initiated by a notice of disagreement and
completed by a substantive appeal after a statement of the
case (SOC) is furnished to the veteran. In essence, the
following sequence is required: There must be a decision by
the RO, the veteran must express timely disagreement with the
decision, VA must respond by explaining the basis for the
decision to the veteran, and finally the veteran, after
receiving adequate notice of the basis of the decision, must
complete the process by stating his argument in a timely
substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202,
and 20.203 (2008).
Here, the only issues that have been addressed in a statement
of the case and properly appealed to the Board are the issues
of entitlement to an earlier effective date for a grant of
service connection for tinnitus and entitlement to a
disability rating in excess of 30 percent for bilateral
hearing loss. Accordingly, the Board only has jurisdiction
over these two issues. The remaining issues are referred to
the RO for appropriate development.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran never filed a claim for entitlement to
service connection for tinnitus.
2. The RO granted entitlement to service connection for
tinnitus effective October 13, 2005, the date the Veteran
filed a claim for an increased rating for hearing loss.
3. The Veteran's bilateral hearing loss is manifested by no
worse than Level IV hearing in the left ear and no worse than
Level XI hearing in the right ear.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an earlier effective date
for service connection for tinnitus have not been met. 38
U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2008).
2. The criteria for entitlement to a disability rating in
excess of 30 percent for bilateral hearing loss have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§
4.1, 4.2, 4.7, 4.10, 4.85, 4.86 Diagnostic Code 6100 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Earlier Effective Date
The effective date of a grant of service connection is
governed by 38 U.S.C.A. § 5110 as implemented by 38 C.F.R. §
3.400. 38 U.S.C.A. § 5110(a) states, "unless specifically
provided otherwise in this chapter, the effective date of an
award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation,
dependency and indemnity compensation, or pension, shall be
fixed in accordance with the facts found, but shall not be
earlier than the date of receipt of application therefore."
38 U.S.C.A. § 5110(b)(1) states that "the effective date of
an award of disability compensation to a veteran shall be the
day following the date of the veteran's discharge or release
if application therefore is received within one year from
such date of discharge or release."
The regulation implementing 38 U.S.C.A. § 5110 provides that
the effective date of an evaluation and award of compensation
based on direct service connection shall be the day following
separation from active service or the date entitlement arose
if the claim is received within one year of separation from
active service; otherwise it shall be the date of receipt of
the claim or the date entitlement arose, whichever is later.
38 C.F.R. § 3.400(b)(i)(2) (2008).
The Veteran was granted service connection for tinnitus in a
January 2006 rating decision, effective October 13, 2005, the
date the Veteran filed a claim for an increased rating for
hearing loss. The Veteran claims that because there is
medical evidence that he suffered from tinnitus in 1983, the
effective date of service connection for tinnitus should be
in 1983. However, the Board can find no evidence that the
Veteran filed a separate claim seeking entitlement to service
connection for tinnitus in 1983. Indeed, it does not appear
that the Veteran ever filed a claim seeking entitlement to
service connection for tinnitus and that the RO, on its own
initiative, granted this claim.
VA is not required to anticipate any potential claim for a
particular benefit where no intention to raise it was
expressed and the mere presence of medical evidence that a
veteran suffers from a disability does not establish intent
on the part of the veteran to seek service connection for
that disability. Brannon v. West, 12 Vet. App. 32, 34-35
(1998). Thus, the mere fact that there was medical evidence
of tinnitus of record in 1983 is not alone sufficient
evidence to award an earlier effective date. The Veteran
must show that he expressed his intention to seek service
connection for tinnitus in writing at some time prior to
October 2005.
As discussed above, an effective date will be either the date
entitlement to service connection for a disability arose or
the date a claim for service connection is filed, which ever
date is later, unless the claim is filed within one year of
service which the Veteran did not do in this case. 38 C.F.R.
§ 3.400(b)(i)(2) (2008). While the Veteran may have been
suffering from tinnitus since his active service,
unfortunately he has never filed a claim seeking service
connection for this disability. He was only granted service
connection as part of the RO's process of adjudicating a
separate claim for an increased rating for hearing loss and
the RO reasonably assigned an effective date based on the
date the Veteran file his increased rating claim. As the
date the Veteran filed this increased rating claim (October
13, 2005) is later than the date entitlement to service
connection arose, that later date is the proper effective
date.
While the Board recognizes that this may seem unfair to the
Veteran, the Board is bound to uphold the law. Based on all
the above evidence, entitlement to an effective date earlier
than October 13, 2005 for the Veteran's service connected
tinnitus is not warranted. The evidence in this case is not
so evenly balanced so as to allow application of the benefit-
of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008).
Increased Rating
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp.
2007); 38 C.F.R., Part 4 (2008). Separate diagnostic codes
identify the various disabilities. 38 C.F.R. § 4.1 requires
that each disability be viewed in relation to its history and
that there be emphasis upon the limitation of activity
imposed by the disabling condition. 38 C.F.R. § 4.2 requires
that medical reports be interpreted in light of the whole
recorded history, and that each disability must be considered
from the point of view of the veteran working or seeking
work. 38 C.F.R. § 4.7 provides that, where there is a
question as to which of two disability evaluations shall be
applied, the higher evaluation is to be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating is to
be assigned.
An evaluation of the level of disability present also
includes consideration of the functional impairment of the
veteran's ability to engage in ordinary activities, including
employment. 38 C.F.R. § 4.10 (2008).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function, will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the Veteran, as well as the entire history of the
Veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
In deciding the Veteran's increased evaluation claim, the
Board has considered the determinations in Fenderson v. West,
12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App.
505 (2007), and whether the Veteran is entitled to an
increased evaluation for separate periods based on the facts
found during the appeal period. In Fenderson, the U.S. Court
of Appeals for Veterans Claims (Court) held that evidence to
be considered in the appeal of an initial assignment of a
rating disability was not limited to that reflecting the then
current severity of the disorder. In that decision, the
Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation has been disagreed with, it was
possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal period. Id. at 126. Hart appears to
extend Fenderson to all increased rating claims.
The Veteran was originally granted service connection for
right ear hearing loss in a December 1983 rating decision,
effective October 1982, and assigned an initial non-
compensable evaluation. In October 2005, the Veteran filed a
claim for an increased rating for his hearing loss. In a
January 2006 rating decision, the RO increased the Veteran's
disability rating to 30 percent and granted service
connection for the left ear as well. The Veteran has
appealed.
Evaluations of defective hearing are based on organic
impairment of hearing acuity as measured by the results of
controlled speech discrimination testing together with the
average hearing threshold level as measured by pure tone
audiometric tests in the frequencies 1,000, 2,000, 3,000 and
4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To
evaluate the degree of disability from defective hearing, the
rating schedule requires assignment of a Roman numeral
designation, ranging from I to XI. Other than exceptional
cases, VA arrives at the proper designation by mechanical
application of Table VI, which determines the designation
based on results of standard test parameters. Id. Table VII
is then applied to arrive at a rating based upon the
respective Roman numeral designations for each ear. Id.
For exceptional hearing impairment, 38 C.F.R. § 4.86 (2008)
states that when the pure tone threshold at each of the four
specified frequencies (1000, 2000, 3000, and 4000 Hertz) is
55 decibels or more, or when the pure tone threshold is 30
decibels or less at 1000 Hertz and 70 decibels or more at
2000 Hertz, the rating specialist will determine the Roman
numeral designation for hearing impairment from either Table
VI or Table VIa, whichever results in the higher numeral.
Each ear is to be evaluated separately. Id.
Of record are results from VA compensation examinations from
January 2006, February 2007, and September 2007.
The January 2006 examination yielded test results of pure
tone thresholds in the right ear at 500, 1000, 2000, 3000,
and 4000 Hertz of 95, 105+, 105+, 105+, and 105+ decibels,
respectively, for an average over the four frequencies of
interest of 105 decibels. Pure tone thresholds measured in
the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were
40, 55, 50, 55, and 60 decibels, respectively, with an
average over the four frequencies of interest of 55 decibels.
Speech audiometry test results revealed speech recognition
ability that was untestable in the right ear and of 80
percent in the left ear. These results show that the Veteran
has exceptional hearing loss in the right ear as contemplated
in 38 C.F.R. § 4.86.
Application of 38 C.F.R. § 4.85 Table VI and Table VIA to the
February 2005 measurements results in assignment of Roman
Numeral XI to the right ear and Roman Numeral IV to the left
ear, for the purpose of determining a disability rating. A
30 percent rating is derived from Table VII of 38 C.F.R.
§ 4.85 by intersecting row IV with column XI.
No further testing was done until February 2007. The
February 2007 examination yielded test results of pure tone
thresholds in the right ear at 500, 1000, 2000, 3000, and
4000 Hertz of 105+, 105+, 105+, 105+, and 105+ decibels,
respectively, for an average over the four frequencies of
interest of 105 decibels. Pure tone thresholds measured in
the left ear at 500, 1000, 2000, 3000, and 4000 Hertz were
45, 55, 60, 65, and 65 decibels, respectively, with an
average over the four frequencies of interest of 61.25
decibels. Speech audiometry test results revealed speech
recognition ability that was untestable in the right ear and
of 100 percent in the left ear. These results show that the
Veteran has exceptional hearing impairment in the both ears
as contemplated in 38 C.F.R. § 4.86.
Application of 38 C.F.R. § 4.85 Table VI and Table VIa to the
February 2007 measurements results in assignment of Roman
Numeral IV to the left ear and Roman Numeral XI to the right
ear, for the purpose of determining a disability rating. A
30 percent rating is derived from Table VII of 38 C.F.R. §
4.85 by intersecting row IV with column XI.
The Veteran was given a final VA examination in September
2007. The September 2007 examination yielded test results of
pure tone thresholds in the right ear at 500, 1000, 2000,
3000, and 4000 Hertz of 105+, 105+, 105+, 105+, and 105+
decibels, respectively, for an average over the four
frequencies of interest of 105 decibels. Pure tone
thresholds measured in the left ear at 500, 1000, 2000, 3000,
and 4000 Hertz were 40, 55, 50, 60, and 60 decibels,
respectively, with an average over the four frequencies of
interest of 56.25 decibels. Speech audiometry test results
revealed speech recognition ability that was untestable in
the right ear and of 76 percent in the left ear. These
results show that the Veteran has exceptional hearing
impairment in the right ear as contemplated in 38 C.F.R.
§ 4.86.
Application of 38 C.F.R. § 4.85 Table VI and Table VIa to the
February 2007 measurements results in assignment of Roman
Numeral IV to the left ear and Roman Numeral XI to the right
ear, for the purpose of determining a disability rating. A
30 percent rating is derived from Table VII of 38 C.F.R. §
4.85 by intersecting row IV with column XI.
The January 2006, February 2007, and September 2007
audiological testings do not provide for assigning a
disability rating in excess of 30 percent for the Veteran's
bilateral hearing loss.
In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the United
States Court of Appeals for Veterans Claims (Court) held that
in addition to dictating objective test results, a VA
audiologist must fully describe the functional effects caused
by a hearing disability in his or her final report.
Martinak, 21 Vet. App. at 455. Here, the VA examiners did
not directly discuss the effect of the Veteran's hearing loss
on his daily activities. However, a remand is not warranted
because the claims file includes records from the Social
Security Administration which include an analysis of how the
Veteran's hearing loss disability impacts his ability to live
and work, which has been reviewed.
In this regard, it is important for the Veteran to understand
that a 30 percent evaluation for hearing loss is a
significant disability evaluation that will, by definition,
cause the Veteran problems in his day-to-day life (if it did
not, there would be no basis to find the Veteran 40 percent
disabled as the result of this disability and the tinnitus).
Also considered by the Board is whether the Veteran's
bilateral hearing loss disability warrants referral for
extraschedular consideration. To accord justice in an
exceptional case where the scheduler standards are found to
be inadequate, the field station is authorized to refer the
case to the Chief Benefits Director or the Director,
Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. 38 C.F.R. § 3.321(b)(1)
(2008).
The criterion for such an award is a finding that the case
presents an exceptional or unusual disability picture with
related factors as marked interference with employment or
frequent periods of hospitalization as to render impractical
application of regular schedular standards. The Court has
held that the Board is precluded by regulation from assigning
an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in
the first instance; however, the Board is not precluded from
raising this question, and in fact is obligated to liberally
read all documents and oral testimony of record and identify
all potential theories of entitlement to a benefit under the
law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996).
The Court further held that the Board must address referral
under 38 C.F.R. §3.321(b)(1) only where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
In a recent case, the Court clarified the analytical steps
necessary to determine whether referral for extraschedular
consideration is warranted. See Thun v. Peake, 22 Vet. App.
111 (2008). The Court stated that the RO or the Board must
first determine whether the schedular rating criteria
reasonably describe the veteran's disability level and
symptomatology. Id. at 115. If the schedular rating
criteria do reasonably describe the veteran's disability
level and symptomatology, the assigned schedular evaluation
is adequate, referral for extraschedular consideration is not
required, and the analysis stops. Id.
If the RO or the Board finds that the schedular evaluation
does not contemplate the veteran's level of disability and
symptomatology, then either the RO or the Board must
determine whether the veteran's exceptional disability
picture includes other related factors such as marked
interference with employment and frequent periods of
hospitalization. Id. at 116. If this is the case, then the
RO or the Board must refer the matter to the Under Secretary
for Benefits or the Director of the Compensation and Pension
Service for the third step of the analysis, determining
whether justice requires assignment of an extraschedular
rating. Id.
The Board finds that the schedular rating criteria reasonably
describe the Veteran's disability level and symptomatology.
Therefore, no referral for extraschedular consideration is
required and no further analysis is in order.
The Board does not find evidence that the Veteran's hearing
loss disability should be increased for any period based on
the facts found during the whole appeal period. The evidence
of record from the day the Veteran filed the claim to the
present supports the conclusion that the Veteran is not
entitled to additional increased compensation during any time
within the appeal period. As such, the claim for a
disability rating in excess of 30 percent for bilateral
hearing loss must be denied. The evidence in this case is
not so evenly balanced so as to allow application of the
benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102
(2008).
The Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs (VA)
has a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide.
38 C.F.R. § 3.159. This notice must be provided prior to an
initial unfavorable decision on a claim by the RO. Mayfield
v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims (the Court) held that,
upon receipt of an application for a service-connection
claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the elements of the claim, including
notice of what is required to establish service connection.
The veteran must also be informed that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded.
Here, notice was satisfied by way of letters sent to the
Veteran in December 2005, August 2006, and June 2007. These
letters informed the Veteran of what evidence was required to
substantiate his claim and of VA and the Veteran's respective
duties for obtaining evidence. The Veteran was also informed
of how VA assigns disability ratings and effective dates.
However, notice as to how VA assigns disability ratings and
effective dates was not provided to the Veteran prior to the
initial unfavorable decision on the hearing loss claim by the
RO. Under such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the RO's
initial adjudication, this timing problem can be cured by the
Board remanding for the issuance of a VCAA notice followed by
readjudication of the claim by the RO); see also Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as a statement of the case or a
supplemental statement of the case, is sufficient to cure a
timing defect).
Although the notice letter not sent before the initial RO
decision in this matter, the Board finds that this error was
not prejudicial to the appellant because the actions taken by
VA after providing the notice have essentially cured the
error in the timing of notice. Not only has the appellant
been afforded a meaningful opportunity to participate
effectively in the processing of his claim and given ample
time to respond, but the RO also readjudicated the case by
way of a statement of the case issued in July 2008. For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal as the timing
error did not affect the essential fairness of the
adjudication.
For an increased-compensation claim, section § 5103(a)
requires, at a minimum, that the Secretary notify the
claimant that, to substantiate a claim, the claimant must
provide, or ask the Secretary to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life. Vazquez-Flores v.
Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic
Code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant Diagnostic Codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. As with
proper notice for an initial disability rating and consistent
with the statutory and regulatory history, the notice must
also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation-e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Id.
In July 2008, the RO sent the Veteran a letter that complied
with the holding in Vazquez-Flores. However, this notice was
not sent to the Veteran until after the initial adjudication
of the claim and was not followed by a readjudication.
In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit held
that any error by VA in providing the notice required by 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed
prejudicial. However, in the recent case of Shinseki v.
Sanders, 129 S.Ct. 1696 (2009), the United States Supreme
Court (Supreme Court) determined that the Federal's Circuit's
"harmless error" analysis set forth in Sanders v. Nicholson
was too complex and rigid, its presumptions imposed
unreasonable evidentiary burdens upon the VA, and it would
too often require an appellate court to treat as harmful
errors that in fact were harmless. Instead, the Supreme
Court held that in cases were notice was inadequate, the
reviewing court should consider the totality of the
circumstances in determining whether the Veteran was
prejudiced by the error.
Here, the Board notes that although the July 2008 Vazquez-
Flores notice was not followed by a readjudication, at the
April 2009 hearing, the undersigned Veterans' Law Judge asked
the Veteran's attorney if the Veteran had any additional
evidence to submit and was informed that all relevant
evidence was of record. Thus, as the Veteran has no
additional evidence to submit, no purpose would be served by
remanding the case for readjudication and the Board can
proceed with the adjudication of this appeal.
VA also has a duty to assist the claimant in the development
of the claim. This duty includes assisting the Veteran in
the procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). It appears that all evidence necessary
for a fair adjudication of the claim is of record. The RO
has obtained the Veteran's service treatment records, as well
as VA and SSA records. The Veteran was also afforded three
VA audiological examinations.
Significantly, neither the appellant nor his representative
has identified, and the record does not otherwise indicate,
any additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained.
Based on the above, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
The appeal is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs